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  • 3912 Prospect Avenue East
  • Cleveland, OH 44115
  • Phone: (216) 696-0900
  • Fax: (216) 696-8800

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Zukerman, Daiker & Lear Co., L.P.A.

Attorneys at Law

Dui / Traffic

Ten Ways to Beat a DUI - 5 through 7
Ways 1-4 >>>       Ways 5-7 >>>      Ways 8-10 >>>

5. Unlawful Arrest

Though an officer may effectuate a traffic stop based on the observation for a minor traffic offense, an arrest can only take place after probable cause is established.  Often an officer intending to determine whether or not probable cause exists to make an arrest for Operating a Vehicle while Impaired (OVI) will make an arrest prior to this determination.  If so, the officer is making an invalid and unlawful arrest, and any and all evidence obtained by that officer subsequent to the arrest may be deemed inadmissible in court. 

An arrest is not a formal event. It takes place as soon as a private citizen reasonably feels as if his/her freedom is being infringed upon.  The officer must read any arrested person his/her Miranda rights.  The act of placing a suspect in a car, or even ordering a suspect to follow directions may constitute an arrest. If you are arrested for a DUI / OVI, but are placed in a police car or ordered to follow the directions of the police officer prior to his determination of your sobriety, you may be the victim of an unlawful arrest. If so, any evidence regarding possible impairment, such as performance on Standard Field Sobriety Tests or the results of a chemical test, may be deemed inadmissible in court.  To find out if you were arrested unlawfully, contact an attorney at (216) 696-0900 or 1-888-DUI-OHIO (384-6446) immediately!

6. Failure To Advise Your Right To Refuse

If you are arrested for Operating a Vehicle while Impaired (OVI) you will likely be taken to a police station and asked to submit to a breath test.  The test will determine your blood alcohol content (BAC).  If your BAC is equal to or greater than .08 percent alcohol by volume, the result of the test may serve as conclusive evidence that you were operating a vehicle while impaired.  If you are under twenty-one (21) years of age, the limit is .02 percent alcohol by volume. If you test above .17 percent blood alcohol by volume you may be charged with a “super-OVI” or “upper tier” OVI and be subject to double penalties.

Prior to submitting to the test, the arresting agency is required by law to inform you of the consequences of submitting to the test, as well as your right to refuse the test and the consequences of doing so.  If you submit to the test, you may be providing the State with substantial evidence that you were in fact impaired on the evening in question.  If your tests results in a number over the legal limit, the Ohio Bureau of Motor Vehicles will suspend your license for ninety (90) days.  Fifteen (15) of those days are a hard suspension, meaning you cannot be granted driving privileges of any kind.  If you refuse the test, your license will be suspended for a full year, and the hard suspension lasts for thirty (30) days. 

The arresting agency must fully inform any DUI / OVI suspect of the above information.  Any failure to do so may render the results of the test, or the refusal inadmissible, and failing to justify a license suspension of any kind.  Many police stations are equipped with surveillance cameras which record whether or not an arresting officer properly informed a DUI / OVI suspect of his/her rights. Our attorneys will be able to obtain a copy of that video to verify that none of the suspects rights were violated. 

7. Breath Test Inadmissible

When an arresting agency requests a suspect to submit to a breath test, they do so to obtain scientific evidence that the suspect is in fact impaired. However, there are certain circumstances where the results of a breath test will be deemed inadmissible in court.  The Ohio Administrative Code (OAC) states very clearly that a breath test is only admissible under certain circumstances. For instance, the OAC mandates that the breath testing machine must be properly calibrated, the operating officer must be certified to operate the machine, the test must take place within a three hour time period, and many other of these types of requirements. Our attorneys fully investigate every breath test to determine whether or not it is admissible.  Attorney Larry W. Zukerman, Esq., is a certified operator of breath test machines, and brings years of experience in the suppression of breath tests.  Determining the admissibility of a breath test may be the difference between being convicted of operating a vehicle impaired or being acquitted. 

Disclaimer � Copyright 2007 Zukerman, Daiker & Lear Co., L.P.A. All rights reserved.

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